Plunder case of Erap adds up to ‘Double 13’ - POSTSCRIPT by Federico D. Pascual, Jr.

(Continued from yesterday)

This Is the continuation of our column yesterday whose tailend was cut for lack of space.

We noted that geologist Jose Antonio Socrates is urging the government to rush the bathymetric survey of the continental shelf where the disputed Kalayaan islands (Spratlys) are located. (A bathymetric survey maps the seabed as it would look if the water were taken out. The continental shelf is the extent of the land gradually sloping down from the shore up to where it drops off steeply to the deep.)

The United Nation has set a November 2004 deadline for countries with territorial sea disputes to submit the legal evidence of their claims. Hence the pressure on the government to hurry up.

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But we beg to disagree with the drift of Socrates’ line, as reported in media, that the legal basis of territorial sea claims is geologic.

Socrates seems to be saying in media that the Kalayaan islands rest on the same continental shelf as Palawan and the rest of the Philippines. Ergo, they are legally part of the Philippines.

It’s not that simple. Political boundaries are not determined by geology or geography. Sometimes such lines are drawn as a result of war or conquest or some such political event.

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We can cite many illustrations of this. Offhand, the Falklands off the coast of Argentina come to mind. They are part of the continental shelf sloping down from the Argentine coast to the disputed islands, but they are still not part of that South American nation.

If we follow Socrates’ line, Argentina should have legal sovereign rights over the Falklands on the basis of his continental shelf legal logic. But that is not the case. Great Britain, which is thousands of miles away to the north, holds and controls the Falklands.

Another strong argument is actual possession or occupation over time. Can Socrates’ geology overturn physical possession legalized over time?

There is the legal maxim that the law itself may not protect one who sleeps on his rights. For instance, our political maps have placed the disputed Scarborough shoal west of Zambales outside our national territorial boundary.

If we ourselves had neglected to include those reefs in our political map, even if they are within our continental shelf, we may have a little problem pushing our claim.

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